The Plaintiff Is Injured and Hires a Personal Injury Attorney
By: Timothy L. Miles | Personal Injury Attorney | Nashville
The personal injury litigation process begins when someone is injured, usually as a result of the negligence of another person. Unless the plaintiff’s damages are minimal, under the jurisdictional amount of the local small claim’s court, the plaintiff will usually speak to a personal injury attorney, and one who is experienced in the area of plaintiff’s injury. For example, if injured at work, the plaintiff will want to hire a workers compensation attorney. If involved in a car accident, the plaintiff will want to try and hire the best auto accident attorney nearby.
After the initial case evaluation, it appears that the plaintiff may have a case, the attorney may agree to conduct an investigation, including into whether or not the defendant has applicable insurance and/or sufficient assets to cover any settlement or judgment. After the initial consultation and the initial investigation, the attorney concludes there is a viable case, a fee agreement will be signed and the attorney-client relationship will be official.
A Complaint Is Filed and Served on the Defendant
After concluding a viable case exists, the attorney will file a personal injury complaint in the proper court which lays out in detail the facts the plaintiff alleges caused his or her injuries and the causes of action (the legal basis for recovery such as negligence).
After the complaint is filed, it will be served on the defendant in the manner proscribed by the applicable rules of court. Along with the complaint and summons, the service papers will include instructions on the date the defendant must file an answer to the complaint or the date by which he or she must “appear” in court.
The Defendant Retains an Attorney
Typically, the defendant will have a month or more to find an attorney before his or her first court date or an answer is required to be filed. If the defendant has an applicable insurance policy, finding a personal injury defense attorney willing to take on the case should not prove difficult. If insurance applies, a strict requirement in insurance policies is that the defendant must notify the insurance company as soon as he or she knows about the lawsuit. The insurance company will then appoint and pay for a lawyer if the defendant has not already hired one.
In the discovery phase, both sides will seek evidence and witness information. Types of discovery include document production, questions answered under oath, admitting or denying certain facts and depositions. Initially, the parties will also appear in court for a status conference to inform the judge of the progress of the case, and if they agree to voluntary mediation. As discovery proceeds, both sides will begin to schedule depositions of the opposing party and witnesses (question-and-answer sessions under oath).
This process of discovery can take months or longer. Once discovery has concluded, the defendant may ask the judge to dismiss the case on “summary judgment,” arguing that the undisputed facts, the plaintiff cannot possibly. Because these arguments are inherently fact-based questions for the jury, these motions are usually denied.
As trial approaches, the parties will engage in mandatory settlement conferences, file motions to limit certain evidence at trial, select a jury, and prepare for trial.
The Trial Phase of a Personal Injury Lawsuit
As the close of discovery and all pre-trial motions having been decided, the trial will begin. A typical personal injury case trial last at least several days. At trial, the judge or jury will determine fault and damages. If the defendant is found at fault, the judge or jury will determine how much the defendant is required to pay out in damages.
After conclusion of the trial, either party may appeal which could last from several months to several years. After the appeals process has been exhausted, a losing defendant will be required to pay the damages established at trial or on appeal.
Most personal injury cases settle before trial. At any point in the process described above, the parties can settle and end the case, even before the complaint is filed.